Court shouldn't have stricken down gun control law

March 19, 2007

WASHINGTON - By striking down the District of Columbia's extraordinarily strict gun control law, which essentially bans guns, a federal appeals court may have revived gun control as a political issue. The appeals court ruling appalls advocates of gun control laws, and should alarm the Democratic Party. The court ruled 2-1 that D.C.'s law, which allows only current and retired police officers to have handguns in their homes, violates the Constitution's Second Amendment: ''A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.'' This ruling probably will be reviewed by the Supreme Court, which 68 years ago seemed to hold that the amendment's first 13 words circumscribe the force of the rest. That is, there is a constitutionally protected right to ''keep and bear'' guns only insofar as the keeping and bearing are pertinent to service in state-run militias. When James Madison and others fashioned the Bill of Rights, they did not merely constitutionalize - make fundamental - the right to bear arms. They made the Second Amendment second only to the First, which protects the freedoms of speech, press, assembly and worship. They did that because individual dignity and self-respect, which are essential to self-government, are related to a readiness for self-defense - the public's involvement in public safety. Indeed, 150 years ago this month, in the Dred Scott decision, Chief Justice Roger Taney said that one proof that blacks could not be citizens was the fact that the Founders did not envision them having the same rights that whites have, including the right to ''keep and carry arms.'' Increasingly, however, some constitutional scholars and judicial rulings argue that several restraints the Bill of Rights puts on government can be disregarded if the worthiness of government's purposes justifies ignoring those restraints. Erwin Chemerinsky, professor of law and political science at Duke University, argued in The Washington Post last week that even if the Second Amendment is correctly construed as creating an individual right to gun ownership, the D.C. law should still be constitutional because the city had a defensible intent (reducing violence) when it annihilated that right. Sound familiar? Defenders of the McCain-Feingold law, which restricts the amount, timing and content of political campaign speech, say: Yes, yes, the First Amendment says there shall be ''no law ... abridging the freedom of speech.'' But that proscription can be disregarded because the legislators' (professed) intent - to prevent the ''appearance'' of corruption and to elevate political discourse - is admirable. If the Supreme Court reverses the appeals court's ruling and upholds the D.C. gun law, states and localities will be empowered to treat the Second Amendment as the D.C. law does - as a nullity. This will bring the gun control issue - and millions of gun owners - back to a roiling boil. That is not in the interest of the Democratic Party, which is supported by most ardent supporters of gun control. George Will is a member of the Washington Post Writers Group. His e-mail address is georgewill@washpost.com.His column appears most Mondays and Thursdays.